Fifty Years in Family Law: Essays for Stephen Cretney
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FIFTY YEARS IN FAMILY LAW: ESSAYS FOR STEPHEN CRETNEY FIFTY YEARS IN FAMILY LAW ESSAYS FOR STEPHEN CRETNEY Edited by Rebecca Probert Chris Barton Cambridge – Antwerp – Portland Intersentia Publishing Ltd. Trinity House | Cambridge Business Park | Cowley Road Cambridge | CB4 0WZ | United Kingdom Tel.: +44 1223 393 753 | Email: [email protected] Distribution for the UK: Distribution for the USA and Canada: Hart Publishing Ltd. International Specialized Book Services 16C Worcester Place 920 NE 58th Ave. Suite 300 Oxford OX1 2JW Portland, OR 97213 UK USA Tel.: +44 1865 517 530 Tel.: +1 800 944 6190 (toll free) Email: [email protected] Email: [email protected] Distribution for Austria: Distribution for other countries: Neuer Wissenschaft licher Verlag Intersentia Publishing nv Argentinierstraße 42/6 Groenstraat 31 1040 Wien 2640 Mortsel Austria Belgium Tel.: +43 1 535 61 03 24 Tel.: +32 3 680 15 50 Email: offi [email protected] Email: [email protected] Fift y Years in Family Law. Essays for Stephen Cretney Rebecca Probert and Chris Barton (eds.) © 2012 Intersentia Cambridge – Antwerp – Portland www.intersentia.com | www.intersentia.co.uk Cover pictures: left : Th e Divinity School, Postcard of “Th e Divinity School” Ref. UK/CP2067 © Th e Bodleian Libraries, Th e University of Oxford middle: Th e Convocation House, Postcard of “Th e Convocation House” Ref. C274 © Th e Bodleian Libraries, Th e University of Oxford right: Magdalen College, Oxford ©Oxford Picture Library/Chris Andrews ISBN 978-1-78068-052-1 NUR 822 British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library. No part of this book may be reproduced in any form, by print, photoprint, microfi lm or any other means, without written permission from the publisher. FOREWORD I have had the privilege to be the fi rst to read this book of essays, in proof, from soup to nuts. It is a great collection. For a great man. Stephen Cretney’s modesty, so widely acknowledged in these pages, would lead him to downplay the signifi cance of his contribution to the benefi cial development of family law during the last 50 years. In fact, however, its signifi cance is hard to overstate. It goes much wider than the quality of his contribution as a Law Commissioner, important though that was. Prior to 1970, as Stephen has demonstrated in his towering History, family law was deeply impoverished. One important reason was the lack of academic interest in it. Th e two rival manuals for use by practitioners – Rayden and Latey – expounded it but were (as one would expect) largely uncritical of it. Writers like A.P. Herbert had lampooned its most egregious absurdities. But there was little intellectual analysis of it, in particular of its archaic and futile hunt for matrimonial ‘guilt’ and ‘innocence’ as the determinants of legal rights. But things changed with the advent in the 1960s of family law as a subject of undergraduate study. Th e fascinating complications inherent in the application of law to family relationships led many students to exercise the option to study it. Generations of them began to read and write about it. Th en they moved on. Many became lawyers; some later became judges. A few became politicians. But, whatever they were doing, these graduates helped to widen the debate. Family law became a matter of national discussion. Th e result was that over the years benefi cial changes in it were wrought both by legislation and also, massively if imperceptibly, by judicial decision. Legal academic study had discharged one of its most important functions: it had fertilised the law. Today family remains the area of law which attracts about the highest level of public interest – up there with criminal sentencing and the reach of Article 8 of the European Convention. Credit for the achievement of putting family law on the map as an important subject for academic study must go to quite a few people, including – very defi nitely – some of the writers of these essays. Here, however, Stephen’s insistence on fairness, hovering over me, guides my pen to identify the seminal contribution of the late Peter Bromley. You must read the essay on the great case of Cretney v. Bromley in 1974: it’s riveting. Yet no one would object to my identifi cation of Stephen himself as perhaps the most infl uential single v Foreword contributor to this achievement. His contribution was by his inspirational book Principles; by his lectures; by the breadth of his other legal activities and the energy with which he pursued them; by the respect for family law which his intellectual stature engendered among lawyers in other fi elds; and by his profound and stimulating expositions of issues in family law, never too hard to understand, which, like a magnet, drew those who read and heard them into a real and lasting interest in them. Th is collection of essays is worthy of Stephen. Th ey fall across a wide spectrum of subjects relating to family law and are written with astonishing clarity, originality and intellectual sophistication. Above all, however, they exude the warmth of one of those glorious English summer days of which we have about six each year. Th is, says each page, is for Stephen. Th e aff ection for the man is palpable. Nicholas Wilson Candlemas, 2 February 2012 Th e Supreme Court vi ACKNOWLEDGEMENTS We are grateful to Baroness Ruth Deech for arranging the planning meeting at the House of Lords and to Warwick Law School for providing funding for participants’ travel. Similar thanks are due to Dr Susan Jenkinson of Staff ordshire University Law School and to All Souls College for the launches at Stoke-on- Trent and Oxford respectively. Finally, much is owed to Ms Cheryl Morris for taking time off work and to Mrs Joan Morris for coming out of retirement to proof-read this book and to Ms Ann-Christin Maak of Intersentia for not allowing her honeymoon to interfere with the vital assistance she provided. We thank them all. We are pleased to say that, at Stephen Cretney’s request, all profi ts from the sale of this book will go to the National Association for the Care and Resettlement of Off enders (NACRO), and we are deeply indebted to Intersentia for their generosity in taking no profi t from the publication themselves. Rebecca Probert Chris Barton March, 2012 vii CONTENTS Foreword . v Acknowledgements . vii List of Authors . xi Introduction Rebecca Probert and Chris Barton . 1 Collective Responsibility: Law Reform at the Law Commission Brenda Hale . 7 A Paean for the Law Commission: A View from the Inside Joanna Harwood and Penny Lewis . 21 In the Matter of Cretney v. Bromley (1974): Stephen Cretney’s Principles of Family Law Simon Rowbotham . 39 ‘Why Should Th ey Cite Us?’: Lessons from an ‘Uncommon’ Family Lawyer’s Infl uence on the Common Law Stephen Gilmore . 57 Child Focused Legislation: For the Sake of the Children? Christine Piper . 71 Th e Illegitimacy Saga Andrew Bainham . 83 Marital Agreements: ‘Th e More Radical Solution’ Joanna Miles . 97 Buggers and Broomers: Have Th ey ‘Been Practising Long Enough’? Chris Barton . 107 Civil Rites Rebecca Probert . 121 Towards a Matrimonial Property Regime for England and Wales? Jens M. Scherpe . 133 ix Contents Holding Onto the Past? Adoption, Birth Parents and the Law in the Twenty-First Century Sonia Harris-Short . 147 Inherently Disposed to Protect Children: the Continuing Role of Wardship Nigel Lowe . 161 Th e Law of Succession: Doing the Best We Can Elizabeth Cooke . 175 Divorce, Internet Hubs and Stephen Cretney Jonathan Herring . 187 Th e Co-Respondent’s Role in Divorce Reform aft er 1923 Sue Jenkinson . 201 Simple Quarrels? Autonomy vs. Vulnerability Gillian Douglas . 217 Shapeshift ers or Polymaths? A Refl ection on the Discipline of the Family Mediator in Stephen Cretney’s World of Private Ordering Neil Robinson . 231 Family Law – What Family Law? John Eekelaar . 247 Regulating the Bar Ruth Deech . 265 A Failed Revolution: Judicial Case Management of Care Proceedings Judith Masson . 277 Openness and Transparency in the Family Courts: A Policy Journey 2005–2011 Mavis Maclean . 297 Fift y Years in the Transformation of American Family Law: 1960–2011 Sanford N. Katz . 303 A Royal and Constitutional Aff air: the Second Marriage of H.M. King Leopold III of the Belgians Walter Pintens . 317 Index . 329 x LIST OF AUTHORS Andrew Bainham is a barrister of the Middle Temple and a tenant at 14 Gray’s Inn Square, representing local authorities, parents, children and other family members in public law and private law children cases. He has been at the University of Cambridge since 1993 where he is Reader in Family Law and Policy and a former fellow of Christ’s College. For over a decade he was editor of the International Survey of Family Law published on behalf of the International Society of Family Law. He is author of many publications in family law, especially the law relating to children, including Children: Th e Modern Law (3rd edition, 2005) to which Stephen Cretney contributed when in its fi rst edition in 1993. Chris Barton is Emeritus Professor of Family Law (Staff ordshire University), Academic Door Tenant at Regent Chambers, an Emeritus Member of Th e Society of Legal Scholars and a Vice-President of the Family Mediators Association. He has taught family law since before the Divorce Reform Act 1969 and is author, co-author and part-author of a number of books. He has also published in learned and professional journals and in broadsheet newspapers. Stephen Cretney, who gave him the honour of being the England and Wales Law Commission’s fi rst researcher (1982/83), has since been his major source of professional inspiration and advice.